Tuesday, September 20, 2005

A copy of a boilerplate easement agreement between a windfarm developer and a landowner has crossed my desk. Those who have already seen such contracts have remarked on the irony of landowners defending their right to do what they want with their own land against the considerations of their neighbors but signing away that very right to the wind company.

The main grant in the contract is an "exclusive easement" that includes the flow of air across the land. Besides the exclusive right to all wind energy on the property and to install and operate anmeometers, turbines, towers, and foundations, the developer is also free to install transmission facilities, utility lines, roads, bridges, culverts, staging areas, storage buildings, signs, fences, gates, etc. -- in fact, anything they want, anywhere they want, with access any time they want.

The contract also allows wind power facilities not only on the owner's property but also anywhere else to affect the property without limitation, including visual, audible, and any other effects.

Although the contract specifies that the developer will consult with the owner in placing the turbines and infrastructure, elsewhere it specifies that the owner will consent to the developer's decision of location, including on other properties.

It is further clarified that the owner waives all setback restrictions, whether legal or by private agreement, and has no right to complain about the consequences.

Similarly, it is specified that the developer may "enjoy" the property without any interference by the owner or anyone else, and that the owner must in fact actively "protect and defend" the developer's right to "enjoy" the owner's property.

The owner and anyone who might live on the property can of course enjoy it as well, as long as the developer doesn't think they're in the way or costing it anything. The developer can require the owner to take measures to keep people out.

The developer also retains the right to transfer this taking to anyone it wants.

The contract is for 2 years, and then 20 years once a turbine is installed, with the developer retaining the option to extend it another 30 years after that. Of course, the developer can terminate the deal at any time. The owner can't.

When it's over, the developer has to remove its mess only to a depth of 4 feet (the tower foundations are much deeper concrete and steel slabs) and simply cover it with dirt. There's no word about restoring the land to its former state. Nor is there any mention of removing material that the developer may not own itself, such as transmission facilities and utility lines.

It's boggling that anyone willingly signs these things, especially in the name of saving the family farm.